Citation Nr: 9925164
Decision Date: 09/01/99 Archive Date: 09/13/99
DOCKET NO. 97-34 181A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in New York,
New York
THE ISSUE
Entitlement to service connection for a low back condition
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Schechter, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1979 to
November 1983.
The veteran was first denied service connection for a low
back condition by an October 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York. The veteran submitted what could be
construed as a notice of disagreement with that decision in
December 1996. Following the issuance of a statement of the
case in April 1997, the veteran timely submitted his appeal.
Within one year of the October 1996 rating action, in August
1997, he requested an RO hearing in connection with the
denial of service connection for a back disorder.
In the course of his appeal to the Board, the veteran was
afforded an RO personal hearing in March 1998. The hearing
officer's decision denying the appeal is contained in the
September 1998 supplemental statement of the case.
REMAND
The veteran contends, in effect, that he strained his back
while unloading a truck in service in 1980, and that he has
experienced intermittent, recurrent low back pain which has
increased in severity over the years up to the present. Yet,
he reports that he did not injure his back subsequent to that
initial strain in 1980. He contends that the ongoing nature
of the back condition warrants its service connection.
The veteran's representative in an April 1999 Written Brief
Presentation argued that the veteran has presented a well-
grounded claim and is therefore entitled to assistance in
development of his claim, pursuant to 38 U.S.C.A. § 5107(a)
(West 1991). The Board agrees.
Service medical records show that the veteran was treated for
low back pain in June 1980. The examiner found mild spasm of
the paraspinal muscles, assessed lumbosacral strain, and
prescribed Parafon Forte, moist heat, a firm bed, and light
duty. The veteran was medically followed in June and July,
1980, for the condition.
Service medical records show that the veteran was again
treated in service in June 1982 for low back muscle strain,
reportedly with pain following playing football and lifting
heavy objects. A resolving muscle strain was assessed.
The veteran's service separation examination in November 1983
was negative for a low back condition.
A September 1996 VA computerized tomography (CT) scan of the
lumbar spine revealed a congenitally narrow canal with
bulging disc and excessive epidural fat posteriorly causing
spinal stenosis from L2-L3, L4-L5, and L5-S1, with no
evidence of herniated nucleus pulposus.
The veteran underwent a VA examination for compensation
purposes in September 1996, wherein the veteran's history was
noted of a back problem due to physical labor in 1980, with
physician therapy in 1980 and 1981 in service, and no history
of back injury since that time. The veteran reported a
history of intermittent low back pain, with difficulty in
forward bending and lifting more than 22 to 30 pounds. The
veteran had limited range of motion with mild pain in the low
back at the end of ranges of motion. The veteran's
congenital narrowing of the lumbosacral canal, as shown on CT
scan, was noted. Also noted were recent essentially normal
x-rays of the lumbosacral spine. There were no findings
suggestive of radiculopathy. The examiner diagnosed mild
spasm of the paralumbar muscles. The examiner concluded that
the veteran had chronic low back pain since 1980.
VA outpatient treatment records in 1996 and 1997 include
treatment for assessed lumbar strain or chronic low back
pain. In an April 1997 treatment, the examiner's impression
was of a ruptured disk and a congenitally narrow spine. In a
November 1997 treatment, the veteran complained of occasional
radiculopathy down the left leg. At several treatments the
veteran reported low back pain since injury in service.
The veteran has consistently contended that he has suffered
from ongoing, recurrent low back pain since a low back strain
in 1980, and that contention is supported by service medical
records showing treatment for that strain and for a repeated
strain in service in 1982. There is no evidence
contradicting the veteran's contentions within the claims
file. The VA medical examiner in September 1996 found the
veteran to suffer from chronic low back pain since service,
apparently based on the veteran's contentions.
Evidentiary assertions by the veteran must be accepted as
true for the purposes of determining whether a claim is well-
grounded, except where the evidentiary assertion is beyond
the competence of the person making the assertion. See King
v. Brown, 5 Vet. App. 19, 21 (1993). In the present case,
the veteran's evidentiary assertions as to continuity of his
symptoms since service are within his competence, and hence
must be accepted as true for purposes of determining whether
his claim is well-grounded. The VA physician has relied upon
those statements of ongoing symptoms to arrive at the
conclusion that the veteran's low back condition has
continued since service. The examiner's conclusion and the
veteran's statements on which it is based are supported and
not contradicted by the medical evidence of record.
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (Court) has held that an assessment based solely on
a factually contradicted history provided by the veteran is
of no probative value. Reonal v. Brown, 5 Vet. App 458
(1993). The Court has also held that evidence which is
simply information recorded by a medical examiner, unenhanced
by any additional medical comment by that examiner, does not
constitute competent medical evidence. LeShore v. Brown, 8
Vet. App. 406, 409 (1995). However, the September 1996 VA
examiner's conclusion - that the veteran has suffered from
chronic low back pain since service - is not shown by the
record to be based on factually contradicted statements by
the veteran, and the conclusion is enhanced by the examiner's
medical examination and medical judgment. Hence that medical
conclusion cannot be rejected as having no probative value or
as not meriting the value to be accorded medical evidence.
Reonal; Justus.
In order for a claim to be well grounded, there must be
competent evidence of current disability (a medical
diagnosis), of incurrence or aggravation of a disease or
injury in service (lay or medical evidence), and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.
App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table); see also Tidwell v. West, 11 Vet. App. 242
(1998).
Submission of a well-grounded claim creates a duty for the VA
to verify or discount the evidence presented; the Board may
not simply reject medical opinions presented, though they may
be equivocal, by using its own judgment. A duty is thus
created, even with such equivocal medical evidence, to seek
clarifying medical evidence. Obert v. Brown, 5 Vet. App. 30,
33 (1993).
The duty to assist includes the duty to request information
which may be pertinent to the claim and to develop pertinent
facts by conducting a thorough medical examination. See
Littke v. Derwinski, 1 Vet. App. 90 (1990).
Where the medical record is insufficient and the claim is
well-grounded, fulfillment of the statutory duty to assist
also requires a thorough and contemporaneous medical
examination. See Suttman v. Brown, 5 Vet. App. 127, 128
(1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124
(1991). In light of the limited medical history presented by
the record, in part due to the absence of private post-
service treatment records which the veteran has been
unsuccessful in obtaining, some further attempt should be
made to obtain post-service private medical records, as well
as any records of VA treatment for the low back condition not
yet obtained.
Thereafter, an additional VA examination should be requested,
in particular for an opinion as to the likelihood of a
service-related etiology of the veteran's low back condition,
based on all the evidence of record, including all new
evidence obtained. The Board notes, in this regard, that the
September 1996 VA examiner did not benefit from a review of
the claims file.
In view of the foregoing, and given the duty to assist the
veteran in the development of his claim under 38 U.S.C.A.
§ 5107 (West 1991), this claim is REMANDED to the RO for the
following:
1. The RO should appropriately contact
the appellant and request that he
identify all sources of medical treatment
received for his low back condition since
separation from service, and that he
furnish signed authorizations for release
to the VA of private medical records in
connection with each non-VA medical
source he identifies. Copies of the
medical records from all sources he
identifies, and not currently of record,
should then be requested and associated
with the claims file.
2. Thereafter, the veteran should be
afforded a VA examination to determine
the current nature, extent, and etiology
of any low back condition. The examiner
must review the claims file and this
remand prior to the examination. For
any current low back condition, the
examiner should specifically state
whether it is as likely as not that the
low back condition developed during
service. All findings and opinions
should be explained in detail. The
claims file and a copy of this remand
should be made available to the examiner
for review in connection with the
examination.
3. Thereafter, the RO should
readjudicate the veteran's claim of
entitlement to service connection for a
low back condition. If the determination
remains to any extent adverse to the
veteran, he and his representative should
be provided a supplemental statement of
the case which includes a summary of
additional evidence submitted, applicable
laws and regulations, and the reasons for
the decision. The veteran and his
representative should be afforded the
applicable time to respond.
The case should be returned to the Board for further
appellate review, if in order. The purpose of this remand is
to procure clarifying data.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV,
directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).